Marklew and Marklew (No. 2)

[2007] FamCA 1262

FAMILY COURT OF AUSTRALIA

MARKLEW & MARKLEW (NO. 2) [2007] FamCA 1262

FAMILY LAW – CHILDREN – With whom a child spends time

Family Law Act 1975 (Cth)

APPLICANT: Mr Marklew

RESPONDENT: Mrs Marklew

INDEPENDENT CHILDREN’S LAWYER: Mr T J Mulvany

FILE NUMBER: MLF 10951 of 1993

DATE DELIVERED: 7 September 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Carter J

HEARING DATE: 7 September 2007

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms L Kelly

SOLICITOR’S FIRM FOR THE APPLICANT: Kelly & Associates

COUNSEL FOR THE RESPONDENT: Mr O N Scoullar-Greig

SOLICITOR FOR THE RESPONDENT: Robinson Gill Lawyers

INDEPENDENT CHILDREN’S LAWYER: Mr T J Mulvany

INDEPENDENT CHILDREN’S LAWYER’S FIRM: T J Mulvany & Co

Orders

1. I discharge paragraphs (3) and (4) of the orders made 4 June 2007.

2. In order to give effect to paragraph (1) of the orders made 4 June 2007, I order that the husband spend time with the child G born … May 1993 from 4 pm on Sunday, 9 September 2007 until 7.30 am on 24 September 2007.

3. Until further order, and to give effect to these orders, pars (6)(c), (6)(v) and (7)(b) of the orders made by Dessau J on 18 June 1999 be and are hereby suspended.

4. In order to facilitate the time he is to spend with the child G, the wife will make all necessary arrangements to enable G to be made available to the husband at the Hilton Hotel in T, at 4 pm on 9 September 2007, and the husband will return G to school at 7.30 am on 24 September 2007.

5. There be a transcript of the proceedings this morning which is to remain on the Court file.

6. My Reasons for Judgment be transcribed, with a copy to be retained on the Court file and copies made available to all parties after the same have been edited.

7. The preparation of this order be expedited forthwith.

8. The costs of the Independent Children's Lawyer and the costs of the husband be fixed in each case in the sum of $660, and the question of payment or contribution thereto by the wife be reserved.

IT IS NOTED that publication of this judgment under the pseudonym Marklew & Marklew is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 10951 of 1993

MR MARKLEW  

Applicant

and

MRS MARKLEW  

Respondent

REASONS FOR JUDGMENT

1. On 4 June 2007, I made orders, some of which were by consent, and two of which were not.  One of the orders which was by consent provided for a child of the husband and wife to attend upon a properly qualified professional person, such as psychologist, in Okalahoma in the United States of America for the purpose of the preparation of a Family Report as to current parenting issues, including but not limited to the issue of G spending time with the husband.

2. I stress that the purpose of the Report was as to current parenting issues, not limited to the issue of G spending time with the husband or, as the Americans would say, “visitation” with the husband.  A process was set in place to enable this to be done in a sensitive and appropriate manner. Because of the suspicions that each of the husband and the wife have for the other, certain restraining orders were made, and they are set out in par 2, again by consent.

3. Commencing at par 5 of the orders, further consent orders were made. They provided for example for G to telephone his mother daily whilst he was in the care of his father. They provided for the husband to make, file and serve an amended application setting out with particularity and precision the orders that he was seeking. That was to be done within 14 days.

4. The wife consented to an order that she make, file and serve a response to that within 14 days of service of it.  I note that the amended application was filed on 18 June 2007, which was within the time provided. Other procedural orders were made, which included the provision for a Pre-Trial Conference after the Report had been obtained.

5. The only matter which was in dispute on 4 June was as to the time, that is the date, when G should spend time with his father.  It was submitted on the wife’s behalf that this time should be after the interview had concluded; the interview in question of course being with the social scientist.  There were reasons advanced to me in support of that contention.  Firstly that G might get upset.  Also the wife felt that G might be intimidated or somehow overborne during the period of time he spent with his father prior to the interview, and would not be able accurately to convey his true feelings to the interviewer.

6. I dealt with that at the time, and I gave a very brief ex tempore judgment for it.  As I said, one hoped obviously that G would not be upset, but if he were to be upset, it was just as likely that he would be upset whether the “spending time” period was before or after the interview.  I accepted that there was a possibility, without making any determination, that G could be overborne in some way by his father, but left that in the end to what I called the good sense and expertise of the interviewer.

7. I noted that I would be astonished if G were not to be interviewed on his own, and the structure of interviews would likely be - of course without limiting the interviewer in anyway - for G to be seen not just alone, but with each of his parents.  As raised by the Independent Children’s Lawyer I noted there was also a possibility that G might be being influenced by his mother. That is only a possibility.

8. As I concluded, the period of time would enable G to renew his acquaintanceship with his father and enable the report to be carried out. I thought that was the best outcome for G in all the circumstances. 

9. For those reasons I made orders which were not by consent which provided for G to spend time with his father during the 2007 United States summer vacation for a period of 14 consecutive days and nights preceding the date which was to be arranged by the Independent Children’s Lawyer for the commencement of interviews with the social scientist.  To give effect to that, I suspended certain of the orders made by Dessau J on 18 June 1999.

10. For reasons which cannot be attributed as being the fault of any of the husband, the wife or the Independent Children’s Lawyer it has not been physically possible to obtain the services of a suitably qualified social scientist to enable the interviews to take place, and consequently the “spending time” period with the husband to take place during the 2007 summer vacation.

11. There were many letters, faxes and the like sent as between the parties’ respective solicitors, and a number of different possibilities were canvassed.  Eventually a situation was reached where it appeared to be prudent to utilise the services of an Australian psychologist rather than a psychologist in the United States. That would of course require payment to be made for the psychologist, not just for the purposes of the preparation of the report, but to fund his travel to the United States.

12. The cost involved of doing all of that appeared to be at least compatible with and potentially less than the costs that were likely to be incurred if a United States professional was employed.  The additional benefit and perhaps essential element of that was that an Australian social scientist of the right calibre and experience would be familiar with Australian law, and the rather complicated sections as some find them of Pt VII of the Family Law Act1975 (Cth). Correspondence continued as between the parties.

13. The wife is represented by Messrs  Robinson Gill Lawyers who responded to the Independent Children’s Lawyer’s communication on 9 August 2007. Their letter is Annexure “DM4” to the affidavit of the husband sworn 6 September 2007. That raised the question of financial circumstances, and certain claims made by the wife which she has maintained throughout many years of litigation in this Court. In point 3 of the letter, Messrs  Robinson Gill said, “If the husband wishes to fund Mr [J] to travel to America, so be it.”  I pause here to say that Mr J is the suggested psychologist.

14. An alternative was put forward which was that if the father was not prepared to meet the cost, then Mr J could conduct the interview by electronic or telephone link-up, or alternatively an American expert could be appointed, and provided with a sample Family Report usually filed in this Court.  I note that the letter is prefaced by statements that the two facsimile letters from the Independent Children’s Lawyer of 6 and 7 August 2007 had been directed to the wife for her consideration.

15. Following that, the husband agreed that he would fund Mr J’s attendance to and in the United States, subject to a reservation of his right to seek a contribution from the wife or that such payment be otherwise taken into account at the final hearing. Further communications took place, and eventually Mr Mulvany prepared a letter for Mr J which had been approved by the lawyers representing each of the husband and the wife.  That letter and certain enclosures were sent to Mr J by facsimile on 16 August 2007.  It contained information as to the family, background, the names of the parties’ lawyers, certain limited information, and various orders which were relevant.

16. The husband made arrangements to deposit the sum of $10,000 into the Independent Children’s Lawyer’s trust account.  That was around about 16 or 17 August 2007. On 20 August 2007, the husband’s solicitors sent to the Independent Children’s Lawyer, with copies to the wife’s solicitors and Mr J, the precise arrangements which were to be made in respect of the husband's travel to the United States for the purposes of spending time with G prior to the preparation of the Family Report or the interviews for the preparation of the Family Report.

17. On 15 August 2007 (see Annexure “DMN” to the husband’s affidavit) by facsimile purportedly received on 22 August 2007, those acting for the wife notified the husband's solicitors that they were having difficulty taking their client’s instructions.  The matter did not proceed too much further in the sense of finite arrangements being made, and eventually the situation was reached where, as foreshadowed, those acting for the husband sought and obtained leave to mention the matter before me.

18. Before I depart from consideration of the correspondence, it is relevant to note that on 30 August 2007, the wife’s solicitors wrote to the Independent Children’s Lawyer, sending a copy of that letter to the husband's solicitors. In the course of that letter, information was confirmed or given that G had resumed school after the summer vacation on 16 August. The proposed itinerary for the husband noted that he was to arrive in Okalahoma on 9 September 2007.  The wife objected to the visit taking place in September “as it will be disruptive to [G]’s schooling”.

19. In the course of that letter, those acting for the wife repeated a claim by the wife as to outstanding child support, and noted her astonishment that the father proposed to meet the costs associated with the psychologist travelling to and from America.  Mention is made of a consultation with the wife's American attorney, and it was suggested that the information provided was that there were numerous qualified psychologists in Okalahoma who could prepare the report.  A request had been made of that United States attorney to nominate a qualified person and to provide details of the cost, noting that the wife could not afford to contribute to it.  The letter concluded:

    “May we suggest that arrangements be made for the time spent to occur at the next available school holiday break.”

20. So far as the wife’s financial circumstances are concerned, on the limited evidence which is available to me - that is, coming from the husband - she may have received a payment of $30,000 comprising a taxation refund, and that would have been available apparently from late August 2007.  As to whether it could have been transmitted to her by now or when indeed it was transferred, I do not know. It is the husband’s evidence, albeit untested, that taking that amount of money into account, child support payments totalling $51,585.50 have been received by the Child Support Agency.  He has included in Annexure “DM17” a copy receipt confirming payments.

21. I was provided with an affidavit sworn by the husband on 6 September 2007 which set out and annexed the correspondence passing between the parties, and otherwise reiterated his position.  I have been handed this day and have granted leave for an affidavit of the wife apparently sworn on 5 September 2007 to be filed.

22. The hearing was listed for 9 o'clock, fortunately, because it has taken a substantial period of time. The husband is represented by his solicitor, Mr Scoullar-Greig appears on behalf of the wife, and Mr Mulvany appears in his role as Independent Children’s Lawyer.

23. In the wife’s affidavit, she notes accurately that the husband did not come to T to spend time with G during the summer vacation period, and nor were arrangements made for preparation of the report.  I have already said as much and I note it was no fault of any of the parties that this was the case. The wife noted that she was unwilling to consent to an order that the husband visit T for two weeks in September, nor have G reside with him in a hotel during G’s school term.

24. I pause there to note that clearly for the husband to see G in the United States, accommodation needs to be arranged. More to the point, the wife went on to say that she thought, for reasons which she did not set out, but merely by way of an assertion, that such an arrangement would be disruptive to G’s education.  That is true to the extent that G would be missing school for that limited period.

25. Paragraph 6 is totally irrelevant, given that the wife has consented to the preparation of a Family Report, and the psychological interviews which of necessity precede them.  In par 7 of the affidavit the wife proposes that, in all the circumstances, including from her understanding that G wishes to see his father again, the husband spend time with G in the next school holiday period, which is of about a week in October. This would, and obviously so, not interfere with school or other scheduled activities.  The wife in other words was not proposing that there should be no time spent by G with his father.

26. In par 8 of the affidavit, the wife reiterates her inability to meet the costs involved in sending an Australian psychologist to the United States, and she is opposed to contributing to any such costs.  She goes on to say:

    “In the event that an appropriate court requires a report, with all due respect to this court, I believe that [G] is subject to the jurisdiction of the [T] County District Court, and I have asked that court that any further proceedings regarding [G]'s visitation with his father be approved through that court.”

27. She notes that she has appointed US attorneys, and there are several annexures to the affidavit.

28. I have been handed a document which appears to be filed in the District Court of T County, State of Okalahoma, on 5 September 2007. It has the heading “Motion to Enforce Jurisdiction of Home State and Stay of Visitation”. It notes amongst other things in par 6 that the respondent, or husband as I will refer to him:

    “… has also inappropriately caused orders to be entered dated June 4 2007 regarding parenting issues and preparation of a family report requiring an Australian psychologist to travel to the United States to visit [G] at a hotel room for two (2) weeks during the school year, all of which petitioner (that is to say the wife) objects to strongly.  There is an urgent hearing regarding same set for September 7 2007.  All such orders should not be enforced by this court and should in fact be stayed or stricken.”

29. The orders I made on 4 June apart from two were all made by consent. None of those orders have been the subject of any appeal.  Accordingly, and putting to one side for a moment the wife’s proceedings in the United States, there is an extant order for G to be interviewed for the preparation of a Family Report.  The orders which I made to facilitate that report cannot take place in the sense that the period of time is no longer possible.  The period of time I refer to of course was the 2007 summer vacation.

30. Until I was told this morning of the proceedings taken by the wife in the United States, I must say I thought that this was all something of a storm in a teacup.  That certainly appears to flow from the correspondence between the parties.  One of the matters which I raised earlier with the wife’s counsel was the communication from the Independent Children’s Lawyer in response to concerns raised on behalf of the wife by her solicitors here in Melbourne. I will not repeat that at the moment, but I say with respect that Mr Mulvany neatly encapsulated the whole matter, and the situation which should pertain in my view for this child’s best interests.

31. The wife has chosen to bring proceedings in the United States which in many respects are inconsistent with the attitude taken by her as demonstrated by the correspondence from her solicitors.  I agree that certain matters appear to have been omitted from her motion, some of them of quite significant effect. It certainly appears to be the case, as Mr Mulvany submitted, that until the last day or so, the wife had been acting proactively in order to arrange for the mutually agreed Family Report to be prepared.

32. In par 7 of her affidavit, she is not objecting to contact. Again she is objecting to the time that this experience should take place. She has acceded to the jurisdiction of this country long ago, and in particular she has acceded to the jurisdiction of this country and the jurisdiction of this Court in the present proceedings.

33. It has been foreshadowed at times on her behalf that she would or might bring an application which in broad terms would suggest that Australia was not the appropriate forum. She had that opportunity most recently pursuant to the orders that I made on 4 June which entitled her, indeed required her, to file a response to the husband’s amended application within 14 days of its service upon her. She has not filed any response, let alone any other application relating to jurisdiction.

34. Mr Scoullar-Greig, with probably some prompting from me, finally sought leave to make an oral application. That application would have been in broad terms that Australia is not the proper forum for this dispute. I refused him leave. It is an application of some gravity. On the material available to me at the moment at least, it is not an appropriate matter to be determined at this stage or in that manner.

35. If the wife wishes to proceed with her application or motion with the United States, the husband will have the opportunity to contest it if he wishes. All I am doing is to continue to uphold one order of the Court which was consented to, namely preparation of the Family Report as to parenting issues including, but not limited to, time to be spent by G with his father, and to facilitate that, I will be making orders merely varying the time that this will take place, and the time that G will spend with his father beforehand. That still enables the wife, as I said, to proceed with her application, should she wish to do so, but at this stage I will not relinquish this Court’s jurisdiction.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carter.

Associate

Date:  22 October 2007